People v. McArron
| Decision Date | 11 July 1899 |
| Citation | 121 Mich. 1,79 N.W. 944 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. MCARRON. |
Exceptions from circuit court, St. Clair county; Samuel W. Vance, Judge.
Owen McArron was convicted of manslaughter, and brings exceptions. Reversed.
Horace M. Oren, Atty. Gen., and Joseph Walsh, Pros. Atty., for the People.
John B McIlwain (O'Brien J. Atkinson, of counsel), for defendant.
The defendant was convicted of the offense of manslaughter. He had been put on trial upon a former occasion, but the jury did not render a verdict. The information charged that the defendant "did kill and murder" the deceased.
At the time set for the trial, a challenge to the array of jurors upon the regular panel was interposed upon several grounds only one of which appears to be urged in this court. That ground is that "the venire was issued before the signature of the sheriff was obtained to the proceedings selecting said jury." This seems to have been based upon an affidavit made by one of the respondent's counsel stating that such proceedings appeared to be signed by him at the time of making the affidavit, i. e. February 7th, but that they were not signed until Saturday, February 5th, which was after the issue and service of the venire. The practice of drawing a jury in St. Clair county is under a statute made expressly for that county. It is Act No. 213, Pub. Acts 1893, as amended by Act No. 46, Pub. Acts 1895. By these acts, the drawing of the regular panel is made the duty of the clerk, sheriff, and circuit judge, or some other specified officer in place of the judge, if he is not present. Section 10 requires the officers acting at the drawing to sign the record thereof. The prosecuting attorney filed an answer to the challenge, alleging that the sheriff participated in the drawing, although he did not sign the record until February 5th, and that upon February 8th respondent was placed upon trial, and that his counsel participated in the examination of jurors, until only four of the regular panel remained; when upon the 9th day of February, 1898, an order was made by the court, reciting that a sufficient number of jurors were not in attendance upon the court to form a panel to try said cause, and ordering 30 talesmen to be drawn and summoned from the jury list in the same manner provided by law for the drawing and summoning of regular jurors, and that they be summoned by the sheriff to appear on February 10, 1898, and that on that day they appeared, and counsel examined them, and finally announced themselves satisfied with the jury, and the jury was sworn. Afterwards the challenge to the array was interposed. It is evident that this was purposely withheld until the jury was sworn, because the affidavit was made on February 7th, the day before the term opened.
The record discloses that the statements of the answer as to what occurred upon the trial were true. There is nothing to indicate that the jurors had not the qualifications for jury service, and it appears that, as a fact, they were regularly drawn and summoned. If they were not, and the drawing had been irregular, we should think the defect had been waived. The prosecutor stated that he proposed to try the defendant for manslaughter, as he considered that he had been acquitted of murder. After a witness had been sworn and testified, defendant's counsel objected to further testimony, upon the ground that the information did not contain a charge of manslaughter, and that, as he could not be tried upon a charge of murder, there was no charge upon which he could be tried. We do not pass upon the question of his liability to trial upon a charge of murder, but we are satisfied that if there had been a conviction of manslaughter upon the first trial, whereby, under our decisions, he had been acquitted of murder, he would have been subject to trial for manslaughter under the same information, after a reversal or vacation of the verdict. See People v. Gilmore, 4 Cal. 376; State v. Hornsby, 8 Rob. 583.
Furthermore, out statute (How. Ann. St. � 9527) provides that an indictment for manslaughter shall be sufficient if it aver that "the defendant did kill and slay the deceased." The word "slay" was not included, but as it is a synonym of "kill," and as all the elements of manslaughter were included in the information, we think its omission was immaterial, and the more heinous charge of murder might be treated as surplusage, just as it would be had he been convicted of manslaughter on the first trial; or we may say, as is frequently said, that this charge of murder included the lesser offense. There is a clear charge of unlawful killing in a good information for murder.
The prosecution introduced testimony tending to show that Mrs. McArron, the defendant's mother, and several of her children, were in or near a dwelling in the process of erection upon her premises, and that several small boys annoyed them, and that one of them, in speaking of a noise that was heard, said "that it was Mrs. McArron's ghost"; whereupon the defendant rushed out, saying, "I will show you whose ghost it is," and, not heeding the deceased's protest that he had not done anything, struck him, and death resulted. The defense maintained that the defendant did not go out into the road, or have any altercation with or strike the boy, and some testimony was introduced tending to establish the fact that defendant was elsewhere at the time this was said to have occurred. This outline of the case will be supplemented by necessary particulars, in connection with a discussion of some of the questions raised. Defendant's brief states that Mrs. Sylvia Lovick was permitted to testify that "some time prior to the time of the offense charged, and entirely disconnected with it, she was out in her yard, and saw Mrs. McArron and her children, including the defendant, back near the barn, and Mrs. McArron said, 'Order them out; make them go away;"' and that, on cross-examination, she said she heard no answer, and did not see any boys around there at that time. Counsel maintain that this was earlier in the evening, and therefore not a part of the res gest�. The testimony, as given, was as follows: "I heard Mrs. McArron speaking, and Owen [the defendant] was present. She said, 'Order them out; make them go away.' I didn't hear anybody answer her. After that, I went back to the house, and paid no further attention to what the McArrons were doing. After I went back to the house, I sat on the step, on the south side. The next thing I noticed a boy running past on Stone street. *** It was almost right away after I got back. *** The next thing I noticed a woman and a girl standing on the crosswalk, looking at something nearly in the direction of the McArron house. Then Kate McDonald came into our place, and this woman turned back to the sidewalk, and passed our place. The girl was with her.
She soon returned, and asked for some water, and all went to the place where the boy was lying. This woman was Mrs. Castaline."
Mrs. Castaline was called as a witness, and also a Mrs. Miller, and their testimony was such as to warrant the inference that it was all one transaction, and that the attack immediately followed the direction of the mother to "make them go out." The testimony was admissible. Mrs. Castaline and her daughter were allowed to testify that they saw the scuffle, and identified the defendant, and that after the affray Mrs. McArron said, "Now, see what you have done." This is said to be error. We will quote at some length from the testimony of these witnesses.
The first one sworn was the child, 10 years old. She said "Ten years old last July. Live on Church street. Remember the night Kilbourne Seeback was killed. I did not know Kilbourne Seeback until that night. I knew McArrons by sight. After father had gone to church, my mother and I got ready and started to visit a neighbor on Church street, and when we turned off Church street to go onto Stone a boy ran by. I didn't know who the boy was. He ran right into us, and we looked to see what he was running so fast for. He ran into mamma. He was running south, on the west side of Stone street. We turned around to see whether the boy kept on running. He ran away down Stone street, and we turned around, and walked down again, passed the church, and went on the crosswalk, until we got about on the center of it. Then we heard loud talking about in front of McArron's new house. When we first came on the sidewalk we heard two voices, but afterwards I heard three. The two voices that we heard were men. After we heard them, we saw two forms under the trees. One seemed to be backing up, while the other was pressing forward. One of the forms was dressed in light from his waist up, and the other was dressed in dark clothes. One of them looked as if he had a cap on the back of his head, and the other had a hat. The one dressed in light had the cap on. The one in dark clothes was backing up, and the one with light from the waist up was pressing forward. One voice was apparently pleading and low. I could not understand what the other was saying. It was in a coarser tone, and a little lower. I couldn't understand the other, and the one with the pleading voice said, 'Quit; leave me alone; I haven't done anything.' I could not distinguish what the other one said. It was gruffer, and I could not understand it. The other voice that I heard was a woman's voice. I think it came from inside the yard. It came from that direction. It said, 'Come in out of that; you've done enough; leave him alone.' When I first looked up there the forms were under the trees. They kept waving back and forth. First they were under the trees, then they wavered out towards the road again. T...
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